Tuesday, April 3, 2007

* This post is published here under the Creative Commons License.The post was authored by Keith Ganey and originally published to his blog at http://www.walaw.org. Ganey is a 2008 graduate of the University of Washington School of Law.

(1) Any person that comments on a part of a comprehensive plan may challenge the final plan in regard to that part.

(2) Every part of a comprehensive plan is open for challenge after a complete update, even if the those parts were left unchanged from the previous plan.

(3) In determining Agricultural Lands: parcel size may be considered, but the actual use of the land may not be relied on.

(4) If a jurisdiction draws its UGAs(“Urban Growth Areas”) assuming that some land within the UGAs will not be developed, then it must explain the basis of that assumption.

(5) Once resource and residential lands were removed, ThurstonCounty failed to provide a variety of rural densities since all remaining lands were zoned for one residence every five acres. Relying on private action to maintain density variety is unacceptable.

Discussion

ThurstonCounty contested Futurewise’s (formerly 1000 Friends of Washington) successful challenge to the most recent update of the county’s comprehensive plan. Thurston was one of the county’s required to update its comprehensive plan during the first round of 7 year updates in 2004. See RCW 36.70A.130. Tim Trohimovich, an employee of Futurewise, provided both written and oral testimony during the update process, but was unsatisfied with the integration of his comments into the final plan. Futurewise prevailed in front of the Western Washington Growth Management Hearings Board (“WWGMHB”). ThurstonCounty appealed.

First, ThurstonCounty argued that Futurewise did not have the right to challenge the comprehensive plan since Mr. Trohimovich nor Futurewise resided on or owned property in the county. The county argued first that the absence of a physical connection prevented Futurewise, an outsider, from becoming involved. Next, the county argued that the legislature did not have the power to authorize such third-party challenges. The court was not persuaded by either of these arguments.

Second, Thurston County attempted to protect its plan by arguing that Futurewise had failed to present a timely challenge to the plan since it had challenged elements of the updated plan that were unchanged from the previous plan. The county argued that Futurewise should have challenged the sections when they were adopted into the previous plan. As the court notes, if the county were to prevail then plan updates would be a mere formality. A county would rarely, if ever, be forced to defend its plan after adopted the first time even though the situation might have greatly changed.

The other two arguments relate to the county’s provisions for rural lands. These sections were a split decision. ThurstonCounty relied on the use and zoning of the lands in order to designate long term resource lands. The zoning can be used since it is government controlled, but the use can not. If the use was considered than land owners could game the system directly. Furthermore, while the did not provide any real difference in zoning densities for rural lands, the WWGMHB did not force Futurewise to prove the insufficiency of the county’s innovative programs to achieve rural variety and thus the board’s decision is unsupported.